3. Negligence - 'duty of care' Flashcards
Donoghue v Stevenson 1932 AC 562
o The case set out the general principles where a person would owe a duty of care to another person
o The case brings foreseeability and proximity as core elements in the test for the duty of care
o Facts
o Mrs Donoghue drank a bottle of ginger beer given to her by a friend. The bottle was dark so she could not see its contents
o A decomposed snail floated out of the bottle
o Mrs Donoghue claimed to have suffered shock and gastro-enteritis
o The respondents argued that the facts were invalid, as the consumer had not entered into a contract with the defendant manufacturer of the goods. She had no contractual remedy – not even under the Contract (Rights of Third Parties) – a non-contracting consumer in the position of Mrs Donoghue would not have a contractual remedy
o Lord Adkin – Lord Adkin’s neighbour principle that people must take reasonable care not to injure others who could foreseeably be affected by their action or inaction.
o Lord Adkin ‘The rule that you are to love your neighbour becomes law: You must not injure you neighbour…who, then in law is my neighbour?…persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected…to the acts or omissions which are called in question.
Anns v London Borough of Merton 1978 AC 728
NB: the result in this case was overruled in Murphy v Brentwood DC 1990 2 All ER 908
o Anns or two stage test overruled by Murphy v Brentwood
o Facts
o Cs were tenants in a block of flats. The flats suffered from structural defects due to inadequate foundations. The defendant Council was responsible for inspecting the foundations during the construction of the flats.
o Held
o HL held D owed a duty of care to ensure the foundations were of the correct depth
o Lord Wilberforce introduced a two stage test for imposing a duty of care – however, overruled by Caparo
o Lord Wilberforce’s test
o 1/ to ask whether there is sufficient relationship of proximity or neighbourhood between the wrongdoer and the person who has suffered damage – if carelessness is likely to cause damage to the claimant, a prima facie duty arises
o 2/ if the first question is answered affirmatively consider whether there are any considerations which ought to reduce or limit the scope of the duty of the duty or the damages to which a breach may give rise to
o So it requires (‘sufficient relationship of proximity based upon foreseeability’ and secondly considerations of reasons why there should not be a duty of care.
Caparo Industries v Dickman 1990 1 All ER 568
Note (Bridge, Oliver and Jauncey)
o Facts
o Caparo Industries purchased shares in Fidelity Plc in reliance of the accounts, which stated that the company had made a pre-tax profit. In fact Fidelity had made a loss. Caparo brought an action against the auditors claiming they were negligent in certifying the accounts
o Held
o No duty of care was owed because the court would not deduce a relationship of proximity between the auditor and a member of the public when to do so would give rise to unlimited liability on the part of the auditor. There was no sufficient proximity between Caparo and the auditors since the auditors were not of the existence of Caparo nor the purpose for which the accounts were being used by them
o HL held that foreseeability would not be sufficient to form the basis of a duty of care – since this was a case of economic loss and there was not a ‘special relationship’ between the parties as explained in the case of Hedley Byrne v Heller and Partners Ltd
o Lord Bridge comments on the Caparo test
o Mentions that there has to be proximity or neighbourhood and the court should consider it fair, just and reasonable that the law should impose a duty of care
o In relation to economic loss
o ‘It is one thing to owe a duty of care to avoid causing injury to the person or property of others. It is quite another to avoid causing others to suffer purely economic loss.’
o The HL set out a three-fold test:
o 1/ harm must be reasonably foreseeable as a result of the defendant’s conduct (as established in Donoghue v Stevenson)
o 2/The parties must be in a relationship of proximity or neighbourhood, and
o 3/ It must be fair, just and reasonable to impose liability
o Steel comments Caparo ‘Proximity has re-emerged as a distinct element…separate from foreseeability.
o Caparo establishes a three-part test it does not operate in terms of distinct stages in the same way as the Anns test did. No factor takes priority. A duty of care ‘will only arise if, in all the circumstances and taking into account the factors above, it seems appropriate that it should do so.’
o The Caparo test is a guide to establishing a duty of care, however, a decision on whether it exists is unpredictable on whether there is a duty of care or not
o … In this case Lord Wilberforce himself recognised that the principles developed after Anns of recognising foreseeability alone as a test of proximity was not sufficient. It was necessary to consider the particular circumstances and relationships which exist
o Article on the subject of foreseeability and duty of care
o C. Witting, ‘The three-Stage Test Abandoned in Australia-or Not?’ P162 Steel
o Proximity is a notion that helps you look for ‘something’. This gives rise to a question, of whether proximity gives real guidance as to what is being looked out for when the particular relationship is being evaluated.
o This is because proximity is a difficult to examine requiring an evaluation of the facts. And the essential function of proximity is to identify those ‘who were placed to take care in the avoidance of damage’.
o The relationship has to be neighbourhood or proximity has to be fair, just and reasonable for the law to impose the duty.
McFarlane v Tayside 2000 2 AC 59 (HL)
o The parents of a healthy, normal child who was born after her father had undergone a vasectomy operation and been told that he was no longer fertile, were not entitled to damages in respect to the costs of caring for and bringing up the child.
o However, the mother was entitled to damages for the pain and discomfort of an unwanted pregnancy and birth associated expenses
o Lord Slynn – ‘The claim was concerned with liability for economic loss. The question was not simply one of the quantification of damages; it was one of liability, of the extent of the duty of care which was owed to the parents’
o Lord Steyn – in contrast to Lord Slynn under Caparo he could explained that a duty was not ‘fair, just and reasonable’ he proposed a reason for distributive and not corrective justice for there to reject the claims. Generally people wanting children would consider it unfair that parents who are fortunate to have one are compensated for the upkeep of a child.
o Held
o The HL held that the mother would be entitled to damages in respect of the pain, suffering and inconvenience of pregnancy and childbirth, and for the immediate medical and other expenses, and loss of earnings, associated with the child birth. However, it was decided that the costs of raising a child were not recoverable
Parkinson v St James and Seacroft 2001 3 WLR 376
o Held
o The mother was healthy but the child was disabled. The court decided that the additional costs of rearing the child associated with its disability could be the subject of damages
o Facts
o The mother had undergone sterilisation. The procedure had been performed negligently and was unsuccessful
o She conceived – she was warned that the child might be born with a disability
o The child was born with severe communication and behavioural problems. It was admitted that the child could not be treated for the purposes of the case as ‘a healthy’ child
o The purpose of the operation was to prevent further children being born with abnormalities
o An award of compensation were limited to special upbringing costs associated with rearing a child with a serious disability was fair and reasonable within Caparo
o If principles of distributive as opposed to corrective justice were employed, most people would regard it as fair and reasonable that the claimant should be compensated in respect of the extra expenses involved
Rees v Darlington Memorial NHS Trust 2004 1 AC 309 (HL)
o Facts
o The claimant was disabled (visual impairment), and sought sterilisation because feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
o Held
o The court having considered the issue in McFarlane – could not change the rule set in McFarlane however it gave a standardise award of £15,000. No damages should be awarded for the extra cost of parenthood arising from a mother’s own disability.
o Lord Bingham – ‘[the] award…would afford some measure of recognition of the wrong done’
o Contrast the case with the lead case of McFarlane – as the award was much less (£5,000) than in this case.
o The claimant’s disability + the impact the defendant’s negligence interfered with her autonomy + the fact that parents had been denied to live as they wanted were reasons for compensation in this particular case.
